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PRESENTED BY 



LESSONS 



FROM THE 



RIOT IN CINCINNATI 



A Sermo::^ pkeachkd to the Woodland Church, 
West Philadelphia, Sunday evening, April Gth 
1884, BY 

, LEONARD WOOLSEY BACpN; 

AND PRINTED AT THE REQUEST OP MANY CITIZENS. 



PHILADELPHIA 

SIDDALL BROTHERS PRINTERS 

X884 



LESSONS 



FROM THE 



RIOT IN CINCINNATI 



A ISEBMON I'KKACIIKU TO THE WOOULAXD (.'HURCII, 

West Philadelphia, Sunday evening, Apeil (Ith 

1884, BY 

LEONARD WOOLSEY BACON; 
// 

AXD PRINTED AT THE BEQUEST OF MANY CITIZENS. 






PHILADELPHIA 
SIDDALL BROTHERS PRINTEKSJ 



I WILL sing of mercy and judgment; unto thee, O Lord, will I sing. I 
will behave myself wisely in a perfeeft way. O when wilt thoU come 
unto me? 

I will walk within my house with a perfect heart. I will set no evil 
thing before mine eyes; I hate the work of them that turn aside; it shall not 
cleave to me. A froward heart shall depart from me : I will not know a 
wicked person. Whoso privily slandereth his neighbor, him will I cut off: 
him that hath a high look and a proud heart will I not suffer. Mine eyes 
shall be upon the faithful of the land, that they may dwell with me; he that 
walketh in a perfedl way, he shall serve me. He that worketh deceit shall 
not dwell within my house; he that telleth lies shall not tarry in my sight. I 
will early destroy all the wicked of the land, that I may cut off all wicked 
doers from the city of the Lord. Psalm CL. A Psalm of David. 

AVENGE not yourselves, beloved, but give place unto wrath: fey it is 
written. Vengeance belongeth unto me, I will recompense, saith the 

Lord 

Let every soul be in subjection to the higher powers: for there is no 
power but of God; and the powers that be are ordained of God. Therefore 
he that resisteth the power, withstandeth the ordinance of God; and they 
that withstand shall receive to themselves judgment. For rulers are not a 
terror to the good work but to the evil. And wouldst thou have no fear of 
the power? do that which is good, and thou shalt have praise from the same; 
for he is a minister of God to thee for good. But if thou do that which is evil, 
be afraid, for he beareth not the sword in vain ; for he is a minister of God, 
an avenger for wrath to him that doeth evil. Wherefore, ye must needs be in 
subjedfion, not only because of the wrath, but also for conscience sake. For 
this cause ye pay tribute also; for they are ministers of God's service, attending 
continually upon this very thing. Romans, xii, ig — xiii. 6. 

BE subject to every ordinance of man for the Lord's sake: whether it be 
to the king as supreme, or unto governors as sent by him for vengeance 
on evil-doers, and for praise to them that do well. . . . Honor all men. 
Love the brotherhood. Fear God. Honor the king. / Peter, it, /? — ij. 



P^ 



^.-^ iii.I-J.GriffiJl 



SERMON 

yavies in, ii, 12 — Qjieak not one against another, 
Inetlircn. i^e tl)at s^ieakctl) against a brother, or jubgctlj l)is 
bvotl)cv, s^cakctl) against tl)e lara, anb jubgcti) tijc lain: but if 
tljon iubgest tl)c law, tl)ou art not a bocr of tl)c laiu, but a 
jubge. (J>nc onln is tl)c Uniigiiicr anb jubgc, cucn l)c u)l]o is 
able to sauc anb to bcstron : but roljo art tijou tl)at iubgcst tlju 
ncigl)bor'? 

As I have read successive lessons of Holy Scripture, this 
evening, from Old Testament and New, your minds have turned 
spontaneously to the frightful and shameful story of the Cincin- 
nati Riot, which is in itself a comment on them. You might 
justly charge me with unfaithfulness to the example of the Lord * 
and the teachings of his apostles, if I were to shrink from point- 
ing the application of these lessons to our personal duty, as 
illustrated by the lurid light of the conflagration of the Cincin- 
nati Court-house. 

These injunctions in the Epistle of James were not spoken 
concerning civil duties. The immediate application of them 
was simply to the condu6l of members of those little Christian 
communities to whom the Epistle of James was addressed. They 
were a warning to these brethren against censoriousness and evil- 
speaking, because it was taking the law into their own hands, 
when they were aggrieved, and righting themselves by their own 
tongues, instead of leaving that to the great Head and Governor 
of the Church, who would redress all such wrongs in his own 
time. The rule is given to Christians in the church ; but the 



* See, among other instances, Luke xiii, 2, 4; xix, 12, 14, illustrating our 
Lord's method of teaching from current public events. 



reason for the rule is as wide as the whole field of civil polity, 
and includes the duty of citizens to each other and to the gov- 
ernment. The language of it is the statement of a political 
principle, which is applied by way of illustration and accom- 
modation to the moral duties of the brethren in those primeval 
Christian congregations. The man who takes the law into his 
own hands to redress his own grievances by pronouncing judg- 
ment on his fellow-citizen, by that a6l condemns the law and 
insults the government. He usurps the fun6lion of the State, 
and just in the measure of the gravity of his adt, infli6ls a blow 
upon its authority. That the State is at hand, with ample power, 
with willing intent, with prompt alacrity, to do its duty, leaves 
him without excuse in his invasion of its prerogative. The 
Christian apostle does more than teach this. He presuities it 
as a thing recognized and accepted — a thing that may be 
argued from as an admitted principle. It is a most impressive 
fa6l, containing more instruction and argument than we now 
have time to draw out from it, that these three Christian apostles, 
Peter, James and Paul, so widely unlike in their modes of thought 
and expression, should be accordant and constant in enunciating 
the fundamentals of political morality; that nowhere the instinct 
of vindi6live justice should be rebuked as wrong ; that constantly 
it should be marked as a thing not to be suppressed, but to be 
held in restraint from private expression and satisfaction, because 
God has ordained his own functionaries of civil government 
for this very end ; and that the long oppressions and triumphs 
of the wicked are to be made tolerable by the thought that even 
when earthly governments fail of their duty the failures of justice 
will surely be redressed, and that with no long delay, by the 
Judge of all the earth. "Dearly beloved, avenge not yourselves, 
"but rather stand aside and give place to the wrath of God : for 
"it is written Vengeance is mine, I will repay, saith the Lord." 
Maran atha — "the Lord is coming" — this was the watch- 
word of their patient waiting.* Maran atha, they would whis- 



See I Cor. xvi, 22; Philipp. iv, 5; Hebr. x, 36, 37; James, v, 7, 8, 9; 
I Peter iv, 7. 



per to each other, when persecution burned with fervent heat, 
"The Lord is at hand. The Judge is at the door" ; — and not 
in vain, for the Lord did come and did not keep silence, but 
avenged his own eledt, who cried unto him, "How long, O 
"Lord, how long?" 

This requirement to yield honor and obedience to the 
institutions of human government as being God's ordinance for 
punishment and reward, acquires immense emphasis from the 
circumstances in which it was pronounced. These apostolic 
scriptures that have come to us in the ends of the world for our 
instru6tion, were given at first (according to the common method 
of the Bible) to a particular people, with reference to a particular 
government at a particular time. And what manner of govern- 
ment was it which these Christians of the first age were required 
in the name of their Lord to obey and honor as God's ordinance 
for the execution of justice? This "supreme king," the Roman 
Caesar, what is he? An irresponsible despot, whose tyrannical 
rule, through processes of military usurpation, has extinguished 
the historic liberties of the Roman republic. That proud people 
had taken the sword against the liberties of the world, and in the 
height of their success, their own liberties had perished by the 
sword. God "gave them a king in his anger"; and such a 
king ! "Thus I will ! thus I choose ! take my will for a reason ' ' ; 
— this was the constitution of the empire. "Martial law" is 
defined to be "the will of the commanding officer." The em- 
pire was martial law; the word emperor means commander-in- 
chief. The emperor's word dethroned princes and set up mean 
men on high. It changed the face of kingdoms. The ends of 
the earth suffered in the fluctuation of his caprices, and Rome 
itself was his slave. The king was supreme. The apostle's word 
is not one whit too strong. In the authority which he arro- 
gated, and in the adoration which he accepted, the emperor 
was a blasphemous usurper of dignities which belong to God 
alone. 

And the " governors that were sent by the king," — what 
were they? The mere creatures of the emperor's whim; not 
instituted nor confirmed by any popular choice, but commis- 
sioned in the name of the Caasar; foreigners from distant Italy, 



4 

imposed upon the subjedl nations by military force, and ex- 
torting a relucftant tribute from the people by means of an army 
of odious publicans : petty despots, the tools of a tyrant, whose 
title to their authority lay in the strength of their alien legions, 
and the dreadful name of Rome. 

And when we come to the personal character of the 
rulers in question, what is it, as it appears in these very doc- 
uments of the apostles' age? The occupant of the imperial 
throne, at the time, was that monster whose vices have made the 
name of Nero a proverb of wickedness in every language of 
Europe. The "governors " were such men as the forcible-feeble 
Pilate, the sneering Festus, the corrupt and rapacious Felix, who 
(as Tacitus says of him) "wielded the power of a king with the 
"temper of a slave.*" And the a6t:ual administration of this 
government was sometimes a course of persecution which counted 
it a crime to be a Christian, as to be a thief or a murderer, t 

Such were the men, and this was the thing, to which these 
harmless Christians were required to yield submission and honor, 
first, as a divine institution, and then as a beneficent institu- 
tion. There is nothing here about legitimate titles, — nothing 
about constitutional rights, — nothing about the consent of the 
governed. Nothing but the bare duty of submitting, with 
deference and respe6l, to one of the most corrupt, tyrannical, 
usurping and unjust governments in human history, just because, 
for the time being, it was the power, and, .being the power, 
was God's ordinance, and God's ordinance for good. It is 
hardly possible for any government to be so bad but that it will 
do more good than evil. Its a6ls of wrong and injustice, how- 
ever frequent, will be the exceptions, and its common course 
will be for the punishment of malefactors and the praise of them 
that do well. It was one of the noblest characters in English 
history — Richard Baxter — who, having suffered much from 
one of the vilest of governments, declared nevertheless that the 
worst of all governments was better than anarchy. So long as 



Hist. V, 9. "Jus regium servili ingenio exercuit." 
f I Peter iv, 12 — 16; James, i, 12; ii, 6. 



the power is the power, able to assert, maintain, vindicate and 
enforce itself, submission to it is not only a necessity, but a duty. 
It is only when tne power ceases to be power and becomes im- 
potency, and the real power passes into other hands, that the 
right and duty of revolution can arise. Mere futile resistance to 
settled governments is a crime and always a crime. This is 
Christian morality, and it is sound political philosophy. Neither 
in Christianity nor in polity is there any provision for assassins 
or dynamite conspirators, l^iere is no right residing anywhere 
to make turbulent and aimless resistance of law, or to begin un- 
successful revolutions. 

This seems a hard saying to you — this command of sub- 
mission? It will be a hard saying, until we come to apprehend 
the double application that it has to us Americans. To the 
subjeBs of a great empire, the New Testament Scriptures pre- 
scribe the duty of submission ; to its rulers, they prescribe the 
duty of using the sword of power efficiently, and for the enforce- 
ment of justice. You will never fully understand, fellow-citizen, 
the bearing of this teaching on your duty, unless you learn to see 
its relation to you as being in your own person both subject 
and ruler. You have thought yourself, perhaps, not exaaiy one 
thing nor the other, but something between the two, with not 
much subordination as a subje6l, and not much responsibility as 
one ordained of God to civil power and trust. A low and un- 
worthy conception both of your duty and of your dignity! 
Your authority, in the trust of government with which you are 
invested, bears with it not less of the sanction of the King of 
kings than did that of the grandest Caisar that ever throned 
himself amid the glories of the Palatine Hill, or that of the most 
legitimately descended Stuart or Bourl)on that ever wrote him- 
self " King by the grace of God. ' ' And on the other hand there 
is no duty of submission to existing government that was de- 
manded in the name of the Lord from the humblest Christian 
under the dominion of the Roman Empire, that does not devolve 
on us reinforced by tenfold sanctions unknown to them of old 
time. The American citizen is not the less a subject for holding 
in his hand a share in the supreme authority of the State. He is 
not one inch the less a king, for being the most loyal and faith- 



6 



ful of subje(5l3. It is one natural consequence of the false Jacobin 
notions of the merely human san6lion of government, which we 
love to teach to each other and to our children, that we lose 
that religious reference for human law which is an essential 
article of Christian morality ; that we think it a light matter to be 
unfaithful to laws of our own making; inasmuch that so acute 
an observer as Herbert Spencer declares that he recognizes in 
American society a marked "decay of the sentiment of justice," 
and that a judicious writer of our own chara6terizes the tendency 
of this age by saying that we are becoming "a nation of law- 
-breakers." * 

And now, fellow-citizens, having spoken to you, in the 
first place, of your duty of obeying, I turn, 

II. — ^ In the second place, to speak to you of your duty 
of enforcing obedience. By just as much as it is your duty, 
being subje6ls, to submit to those powers which by God's ordin- 
ance bear the sword; by just so much is it your duty, being 
ordained of God as rulers, to bear the sword,' and bear it not in 
vain. The sword: it is a lethal weapon, meant to maim and 
slay. To bear the sword : it means, being translated into cur- 
rent forms of modern speech, to wield not only the policeman's 
club, but the musket and bayonet, to handle the battalion, to 
train the Gatling gun. And this terrible duty it is, which, by 
virtue of that supreme civil authority wherewith you, the citizens, 
are divinely invested, is imposed upon you, and which you are 
charged to fulfil not vainly, as giving account thereof to God. 

Put away from your mind that debased and unworthy 
notion that government is a system of coaxing and humoring by 
which everything is to be made pleasant to everybody. It widely 
infe6ts the American mind from the misreading of that doubtful 
aphorism that "governments derive their just powers from the 
"consent of the governed" — an aphorism which is doubtless 
capable of being read in a true sense, but which is commonly 
and most mischievously read in a false one. Settle it clearly in 



* "Dangerous Tendencies in American Society," reprinted, with other valu- 
able papers, from The Atlantic Monthly. 



your minds that government implies law, and that law is not 
good advice; that the statute-book is not, as some zealous 
reformers seem disposed to consider it, a volume of moral essays, 
nor the Legislature a sort of Tra6l Society on a large scale, whose 
business it is to ena<5t "prohibitory" laws, for the sake of moral 
impression, without reference to their being enforced ; under- 
stand that law is not law unless it is enforced by penalty ; and 
that civil penalty can be enforced because, in the last resort, 
those military powers that are symbolized in that syllable, "the 
"sword," are ready to be wielded, whenever the emergency 
requires. I have seen too mnch, in one unhappy little city, of 
the miserable working of the idea that the art of good adminis- 
tration consisted in a genial compromise — a tacit compromise, 
of course — with law-breakers; in judicious winking at the 
lesser, and sometimes the greater crimes; and in a happy-go- 
lucky getting along with things until after the next ele(Slion ; 
that the criminal classes had their rights as such, and that if they 
did not have rights, they certainly had votes, so that it was very 
unwise to alienate their good-will, and that a good local govern- 
ment ought not to be in violently unfriendly relations with 
brothels and tippling-houses. 

O citizens of this noble and historic city, put wholly from 
your minds such base and cowardly and wicked thoughts; and 
learn by the light of burning Cincinnati, that the only right, the 
only prudent, the only tranquil relation of society toward per- 
sistent law-breakers, is a relation of unceasing war. 

The supreme ruler, whether it be the emperor or the body 
of the citizens, must of course wield the sword of society in part 
by other hands. It is his responsibility — your responsibilit) , 
O citizens, — to see that it is committed to hands that are both 
able and faithful. Make sure that the executive head of such a 
vast community as this is not a man who is too popular. Let 
him be a man, always, who hates a scoundrel, and whom scound- 
rels hate and fear. And make sure that the high executive trusts, 
both civil and military, are held by men of nerve as well as of 
discretion — men who know that there is only one humane way 
to use the sword, and that is the prompt, swift, severe way; men 
who won't be guilty of the inhumanity of firing blank cartridges. 



8 



or firing overhead, — a course that never yet was taken with a 
mob, without involving five-fold manslaughter ; — men who 
will not flinch from severity against rioters out of consideration 
for "innocent bystanders," but who know that the bystander in 
a riot isn' t innocent, but is an integral though inactive part of 
the riot, without whose presence the riot would promptly cease ; 
— men the very names of whom, whispered among the mob, 
when the bayonet tips are seen above the crowd, will be the 
sure promise of bloody wounds and death to some one, quick, 
sudden, as soon as the last syllable of the Riot Act is read, — if 
there is any crowd left by the time that syllable is reached. 
Such officers are humane. All others are cruel, — like that 
tender-hearted sheriff in Cincinnati, whose warning to the militia 
to fire overhead involved the slaying and maiming of two hun- 
dred people. 

But, citizens, and especially young citizens, this wielding 
of the sword by proxy, by committing it to brave and resolute 
hands, is not the whole of your duty in the case. You can not 
be quit of your responsibility to God for your share in the gov- 
ernment, on any such easy terms. The duty of bearing arms in 
the maintenance of that government in the royal dignity of which 
God has by birthright given you a share, is a personal duty 
not to be fulfilled by the payment of a commutation tax, or the 
finding of a substitute. What the State wants in this service is 
not your paltry dollar or two, or your cheap man; it wants jiw/. 
And the reasons which you will perhaps allege to your own mind 
to excuse you from this personal service in arms are reasons why 
you ought to serve. Have you many cares for business and 
property? This should be the first of them. Do you enjoy the 
quiet of your own fireside? This is the protection of it. Have 
you high social position and tastes to which the associations of 
the service are uncongenial? Then you are the very man that is 
wanted in the ranks to make it evident that that position is be- 
neath no man's dignity. Do you suspett that you would en- 
counter some things there that would not be agreeable to your 
feelings as a professing Christian? Then it is the very place 
where you are wanted. You would much rather join the Young 
Men's Christian Association, and seek some opportunity of 



Christian usefulness there? There is no conflict between the 
two; but if you can not do both, you would much better join 
a militia-company, and behave yourself therein as a good soldier 
of Jesus Christ. It is as good an opportunity of Christian useful- 
ness as you are likely to find anywhere. 

Or perhaps your excuse to yourself for shirking this com- 
mon duty of a good citizen is this, that you are always ready, 
when the exigenc}' arises, to come out and give your service to 
the cause of law and order. Very likely you are, or think you 
are. There are commonly men enough, when, for lack of ade- 
quate force to begin with, the mob has gathered head, and prop- 
erty and government are in peril, — men enough to rush tumult- 
uously together and form something like a second mob to fight 
the first. But this is not what society wants of you. It needs 
your steady, trained and disciplined support. It does not want 
you by-and-by to put down a riot. It wants you now, so well 
equipped, so drilled to soldierly duties, so conscious of the touch 
of your comrade's elbow, that no riot shall ever dare to begin to 
be. You are impatient of this mere sham and show of military 
service — this child's-play of martial dress and parade? It is a 
childish notion indeed in you to suppose that this is nothing but 
child's-play. It is manly work. The holiday p\rade, that dis- 
plays through these magnificent streets the formidable battalions 
of a well-equipped militia drawn from the best citizenship, is 
something more than holiday parade; it is law; it is govern- 
ment ; it is public order and security. The latent consciousness 
that such a force exists invisible in the midst of society, and that 
in an hour, from shops and fatlories, from banks and counting- 
rooms, from schools of learning and libraries of elegant leisure, 
the summons of the State would evoke it, as the horn of Roderick 
Dhu called his clansmen forth from every rock and bush — this 
it is that makes the baton of an unarmed constabulary as potent 
as the cannon, and causes the courage of the most audacious 
criminal to wither and collapse, when the sheriff's finger touches 
him upon the shoulder. That is the truly efficient militia which 
is so efficient that it never has to be called on for any service but 
drill and parade, and never fires ball cartridges except at targets. 
The battalions that are sneered at by fools as dandy regiments 



and carpet-knights, may well be satisfied with the record that 
they have borne the sword as ministers of God, and borne it so 
far from in vain, that there never has been need to stain it with 
the blood of an extinguished insurrection. 

I am assured, and glad to be assured, that in the present 
character of her citizen soldiery this State, and especially this 
city, has no occasion for any sentiment but pride and gratitude. 
And nevertheless these arguments, enforced by the recent bitter 
experience of a neighbor State, are not untimely. For if the 
chara61:er of this honorable service is to be maintained against 
the continually recurring tendency to decline and decay, it will 
be due to the well-instru6led conscience of the younger citizens. 
And if it does decline — ah, well ' I need not prophesy. Some 
awful page of future American history will tell our posterity what 
followed, in some of the now approaching confiicls of society, in 
certain States in which the militia was left to be recruited and 
officered from the whisky-shop and the beer-garden.* 

I have spoken, I, of the Christian duty of submission to 
government; and II, of the Christian duty of enforcing sub- 
mission to government. It ought not to take long, now, to 
show: — 

HI. — That the one object of mai/ntaining the power of 
government, and the sole condition on which, in the long run, 
this power can be maintained, is this, that it should be used in 
the interest of righteousness. When this object is habitually 
defeated, and this condition fails, government will still go on 
for a while — longer or shorter — until by-and-by suddenly 
it finds that the strength has gone out from it; and losing its 
strength, it has lost its right; for God has ordained the /x^Tucrs 



* It seems due to the citizens by whose invitation this discourse is printed, to 
give it substantially as delivered ; otherwise I should have wished to 
add, at this point, some words on the unfairness of leaving an undue 
share of the pecuniary expenses of the service to rest upon the men to 
whom we appeal, for conscience sake, to give themselves to it in person, 
with its large exadions of time, and its occasional interruptions of busi- 
ness by serious work and exposure. 



n 



that be — he has not ordained the imbecilities and impotencies 
that be. This is the history of many a righteous revolution. 

Or it will find, as in Cincinnati, a new power suddenly 
emerging, whose strength lies in the failures of' the government 
to fulfil the vital fun6lions of government, and which snatches 
at the reins of authority, intent, for the time, to usurp and per- 
form the abdicated duty. And this compels a fight — short or 
long — a riot, we call it, if it is brief, — a civil war if it is pro- 
tracted ; in either case, a miserable shame and calamity in any 
State or nation. Compels, I say; for such insults to its authority, 
such invasions of its most sacred prerogative, government must 
resist, or must by-and-by perish. What blindness, as well as 
what cowardly baseness, in the sneer of the Cincinnati editor, 
"we have lost our Court-house, and our records, and our two 
"hundred dead and wounded citizens, but we have saved our 
"jailful of criminals! Was it worth the cost?"* Saved your 
criminals ! You have saved your honor. — No ! not yours ; 
don't talk about the honor of the dastard who could write a 
paragraph like that. The government has saved its honor, and 
vindicated, at not too great a cost, the authority of law. It has 
declared, and has made good its word, that no mob shall usurp 
its God-given prerogative of executing justice upon criminals; 
and meanwhile it has learned a salutary lesson, which we too 
may lay to heart, that the government which holds this prerog- 
ative only to negle6l and pervert it, will not hold it long. The 
ruler who bears the sword, and bears the sword in vain, will 
presently not bear the sword at all. 

For this clear teaching of the New Testament is corrobor- 
ated by the common experience of society, and especially by the 



* I quote from recollection. There is something inexpressibly base in this 
cool regret at not having purchased the forbearance of the mob by be- 
traying the charge of the State, and handing over its wards to be hung 
from a lamp-post. It is worse than that public opinion which glorified 
the man who attempted to murder a prisoner entrusted to his custody, 
and which pleaded for his pardon with the President of the United 
States; and pleaded successfully. 



wretched experience of many of our own States. The violent 
invasion and usurpation of the prerogatives of government will 
surely take place, either in the form of private revenge or of wild 
Lynch-court justice, whenever society has lost confidence in the 
administration of justice by the State. The infallible consequence 
of the abdication by the State of the duty of punishing criminals 
is not that criminals are safe from punishment, but that that 
grave function is delivered over to the wild, uncertain justice of 
the mob, or the frantic hand of private vengeance. Where lies 
the safeguard of public order in times of public indignation 
against atrocious crime? Does it lie in the truncheons of a 
drilled constabulary? in the bayonets of an organized militia? 
in the squadrons and batteries of a standing army? Yes, here; 
but not here alone. Back of all these lies the convi6lion, deep 
in men's minds, that the Law may be trusted to punish. This 
it is which suffers the suspe6led criminal to lie safe for the time 
within the prison-walls. This speaks to tlie heady passion of 
revenge and says, "put up thy sword, for they who take the 
"sword shall perish by the sword." God himself deigns to 
make appeal to this confidence in his public justice, saying, in 
Paul, "Avenge not yourselves; give place to my wrath; ven- 
"geance is mine, I will repay." And when human government 
can not make like appeal, armies and constabularies can avail 
only for a while. The instinft of a wild justice flings aside 
police clubs like grass, and bayonets like rotten wood, and leaps 
like a tiger on its victim. Lynch law, private assassination, do 
not prevail in communities where strong and faithful government 
is quick to follow crime with adequate penalty. Such ad;s as 
these are the opprobrium of any government, as it is written, 
' ' he that judgeth his brother, judgeth the law. ' ' The murder of 
every assassinated malefaftor, — of every vi6tim of the Lynch 
court, is recorded to the shame of a derelict State. The magis- 
trates by their derelictions, the citizens by their unfaithfulness, 
become accomplices with the assassin in these deeds of blood. 

That defeat of public justice which is the peril of our 
commonwealths, infects all the three departments of govern- 
ment, the Legislative, the Judicial, the Executive. 



13 



1. — The Legislative. For in many, not to say niost, 
of the American States, a wretched tradition of English law pre- 
vails, by which those crimes which above all others most incite 
to fierce and deadly vengeance, crimes against the sanctity of the 
family, like adultery and seduction, are, either by legislation or 
for want of legislation, excepted from the list of crimes that are 
known to the penal law. And with what result? To inaugurate 
a common law, set forth, not, indeed, in judicial decisions, but 
in jury verdicts, which authorizes assassination, which constitutes 
the assassin a popular hero, and erects the open, unblushing 
perjury of juries into a public virtue. In Pennsylvania, where 
adultery and seduction are punishable (however inadequately) as 
felonies, this law of assassination and perjury has no pretext for 
existing ; — the more disgrace, then, to the perjured jury, and 
the infatuated citizens, and the judge accessary after the fact, 
who have lately done what they could to establish it by precedent. 

2. — The responsibility for the defeat of justice resides in 
part in the judicial department of the state, and specially and 
notoriously in the way in which the jury-system is operated for 
the protection of known criminals from just and lawful punish- 
ment. The mischief wrought by certain bad and false traditions 
of English law, which were never right, but are more than ever 
false and demoralizing when they are brought into this country 
and this century, discredits the law in the minds of the peoj)le. 
The old fiction — which was always a fidlion — that the motive 
of a criminal prosecution is the personal animosity of the king 
against the accused, is the teeming mother of other fictions yet, 
that still survive on this side of the sea, and disturb the equal 
course of criminal justice. We made our declaration of inde- 
pendence a hundred years ago, but we shall not have gotten 
through with establishing our independence until more of the 
corollaries of that old maxim of despotism have been eliminated 
from the course of criminal procedure. This is too large a sub- 
je6l to be treated here; but happily the perils to the State in- 
volved in the abuses of the jury system seem now, at last, to have 



14 

roused the alarm of the people, and secured attention from com- 
petent heads and pens.* 

3. — The responsibility for the defeat of justice resides in 
part in the Executive department of the State, in consequence of 



It is the defedls and perversions of the jury system which are just now prom- 
inently before the public; but these are by no means the only faults by 
which the judicial department of the State government contributes to 
the failure of criminal justice, and thus to the peril of public order. 

As this pamphlet is passing through the press, there falls under my 
eye the official statement of a prosecuting officer made in open court, 
which is pertinent to my argument. The following is an extract from 
the report of the trial of Emma Bickcl for the premeditated murder of 
William J. Menow by lying in wait and shooting him through the heart 
from a window by the stieet. It is taken from the Philadelphia Press 
of April 29th : — 

"The law relating to murder of the hrst and second degree, was 
"defined, and then Mr. Bregy made a statement to the jury, which 
" caused the lawyers to prick up their ears. ' With all the obstacles that 
" 'can be thrown in the way of justice,' said he, 'the appeals, the carry- 
" ' ing to the Supreme Court, the appointment of commissions in lunacy 
" 'and what not, I do not think this woman will ever hang, although it 
"'is fully admitted that she committed a premeditated murder. She 
" 'may get imprisonment for life, but that is all.' " 

The ex parte opinion of a prosecuting officer as to the facT;s in a 
case, before the trial, may be taken with allowance. But his official 
declaration that crimes " fully admitted" will probably not receive their 
due punishment, even after convidlion, is entitled to full weight. And 
when this statement is offered to a jury in a capital case, by way of en 
couraging them to convidl, and is met neither by rebuke from the court, 
nor by protest from the opposing counsel, it amounts to much more 
than the statement of an individual officer. 

The lawyers present, it seems, "pricked up their eai-s." (I am 
not responsible for the implied similitude.) So, doubtless, the Cincin- 
nati lawyers had been wont to "prick up their ears" in the presence of 
like fa6ls, and the Cincinnati citizens to read of them in the morning 
papers, until at last "the flood came and carried them all away." They 
see the bearing of them now^. And the time will probably come when 
the people of Philadelphia will see the bearing of Mr. Attorney Bregy 's 
remark to the jury in the case of Emma Bickel. 



15 

the perversion, perhaps we ought rather to say in consequence of 
the existence, of the pardoning power. Tliere never yet has been 
in any State, a Governor so wise, so virtuous, so resolute, that it 
was safe to trust him with the pardoning power. There is no 
State in which the pardoning power, wherever vested, is habitually 
used, that would not be stronger and happier if there were no 
pardoning power at all. Generally speaking, the pardoning 
power is simply an expedient for sacrificing the immense interest 
which society has in the constant, steadfast, impartial course of 
public law and justice, to the individual interest of her least de- 
serving members. The commonest and most plausible pretext for 
the use of the pardoning power is a self-stultification —■- the claim, 
in a given case, that later disclosures of fa6l have made it probable 
that the prisoner was unjustly convi(5led. Such a case as this is 
no case for pardon. Send back the man to the courts to be tried 
anew, under all the advantages and all the difficulties of a judicial 
investigation ; and then, if he can make good his claim, send him 
forth into society, not a guilty man pardoned, but an innocent 
and injured man acquitted and vindicated ; and if there is to be 
any pardoning done, let the State, in the person of its highest 
officers go humbly suing to the feet of this innocent and liberated 
prisoner, and ask /urn to pardon the State for the wrong that it 
has infli(5led on him ; but let us have done with this demoralizing 
and absurd business of pardoning innocent men for having com- 
mitted no crime. And let us have done to the very utmost with 
the business of "executive clemency" — clemency to the crim- 
inal that is cruelty to the State. Abolish the pardoning power, 
and it might no longer be impossible for the State to avoid the 
dreadful necessity of the gallows.* 

As wc would avert the perils of the State and put far away 
the danger that the ruined walls and crumbled statues of your 
public buildings shall some time stand, like those of Cincinnati, 



On this subjecl — ihe total abolition of the pardoning powe.' — I refer to 
an argument by my brother, Theodore Bacon of Rochester, New York, 
entitled "The Defeat of Justice," contained in T/ie Gnlaxy for January 
1878. 



i6 



the awful monument of a government that bore the sword in 
vain, let us endeavor that from legislation, and from judgment, 
and from the execution of the awards of law, shall'be eliminated 
those uncertainties and partialities which are the emboldening 
of crime, and which, when they accumulate, are maddening to 
the people's sense of justice, until at last, under the provocation 
of some surprising wrong, the reins of self-control break in the 
hand, and in the frenzy of the hour, anarchy and riot seem for 
the moment to be public virtues. 

These then I leave with you as the lessons of the Cincin- 
nati Riots : — 

1. — The duty of obedience to law and constituted gov- 
ernment. 

2. — The duty of enforcing obedience to law, (a) by vest- 
ing its executive powers in capable and faithful men ; (^) by 
personal service in bearing arms. 

3. — The duty of seeing to it that government is so admin- 
istered, in all its departments, legislative, judicial, executive. 
in the steadfast, sure execution of justice on evil-doers, that the 
enforcement of obedience shall not be impossible. 

And for the fulfilment of this great and solemn trust, O 
citizens, may God give you an understanding mind, a strong 
and courageous heart, and a will inflexible and incorrupt. Amen . 



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